BACK PAGE: Wake-up call for government accountability

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Canadian Lawyer

OPINION05 May 2008

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Britain’s new Corporate Manslaughter Act has a terrifying name. The law creates a tort by which an organization can be held liable for a death “if the way in which its activities are managed or organized” is a “gross breach of a relevant duty of care owed by the organization to the deceased.”

At first glance that might not sound novel — corporate liability has existed since the Industrial Revolution. But what’s new is that it doesn’t rely on the specific actions of a particular employee or manager who committed a tort. Now, a corporation is liable “if the way in which its activities are managed or organized by its senior management is a substantial element in the breach” of the duty of care. In other words, it’s going to be easier to tag companies for accidents and disasters.

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Not surprisingly, Britain’s ideological left is rejoicing. David Bergman, of the Centre for Corporate Accountability, told the Financial Times before the law it was “practically impossible” to sue a large company for a wrongful death. In fact, British companies have been hit with enormous penalties lately. In 2000, a railway crash in Hatfield that claimed five lives resulted in a ÃƒÆ’Ã‚Â¢Ãƒâ€¹Ã¢â‚¬Â Ãƒâ€¦Ã‚Â¡ÃƒÆ’Ã†’ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¡ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â¬ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â£11-million fine and the partial renationalization of the railway. A 1999 explosion in Lanarkshire that killed a family of four yielded a ÃƒÆ’Ã‚Â¢Ãƒâ€¹Ã¢â‚¬Â Ãƒâ€¦Ã‚Â¡ÃƒÆ’Ã†’ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¡ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â¬ÃƒÆ’Ã¢â‚¬Å¡Ãƒâ€šÃ‚Â£15-million punishment against gas company Transco.

But it’s not just for-profit companies that are governed by the Corporate Manslaughter Act. It’s an equal-opportunity law, covering most of the U.K.’s government. That’s a startling departure from the usual ethic of over-governance for companies and free passes for government. Even Canada’s corporate-negligence amendments to our Criminal Code, enacted in the wake of the Westray mine explosion that killed 26 miners, only apply to “organizations.” In other words, it exempts about half of all collective acts in Canada.

The Corporate Manslaughter Act covers British businesses, but they’re already operating at high standards of accountability. Anti-corporate activists might be licking their chops, but it’s going to be government agencies unused to corporate standards of accountability and transparency that will be caught by the new law.

Consider how such a law might be applied in Canada. What if Health Canada and the government-run Red Cross had been subject to the Corporate Manslaughter Act during the infection of the Canadian blood supply? Or how about the deaths in Walkerton, due to the malfeasance of Stan and Frank Koebel of the Walkerton Public Utilities Commission? None of those victims had recourse under our law. The only conviction under the Westray amendments came just this spring, and five years after the Criminal Code was amended, when a Quebec mining company was fined $100,000 for an unsafe work environment that killed one.

By contrast, Britain’s law permits juries to try governments and to “consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organization that were likely to have encouraged any failure [to comply with regulations] or to have produced tolerance of it.” Can you name any government bureaucracy where that look-the-other-way mentality does not exist?

That provision seems tailor-made for B.C. Ferries Corp. Two years ago, its ship, Queen of the North, sank. Two passengers were killed. The two crew members on the bridge — former lovers — were too busy having a “personal conversation” to notice that the ship was headed towards the shore. Had that been a private ship, the company would have been sued into bankruptcy. Under the Corporate Manslaughter Act, not only would they likely have to pay tens of millions of dollars, but they could be subject to a “publicity order” to advertise the details of their wrongdoing, the amount of their fine, and any remedial orders.

I doubt hundreds of years of common law have left many real gaps in British torts. The Corporate Manslaughter Act is more a statement of ideology. It’s certainly a powerful weapon to avenge accidental deaths. But the truly fascinating innovation is its application to government homicides which, from Waco to Chernobyl, have enjoyed immunity too long.

Ezra Levant is a Calgary lawyer. He can be reached at ezra@ezralevant.com

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